Citation Nr: 0623893
Decision Date: 08/08/06 Archive Date: 08/18/06
DOCKET NO. 02-17 475 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Entitlement to Dependency and Indemnity Compensation
(DIC) under 38 U.S.C.A. § 1318.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
B. Wilson, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1940 to March
1945. He died in June 1981. The appellant is the veteran's
surviving spouse.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions dated in February
2002 and February 2003 by the Department of Veterans Affairs
(VA) Regional Office (RO) in Jackson, Mississippi, which
denied entitlement to the benefits currently sought on
appeal.
FINDINGS OF FACT
1. The veteran's death certificate indicates that he died in
June 1981, and lists the cause of death as "natural
causes."
2. At the time of the veteran's death, service connection
was in effect for anxiety neurosis.
3. Diabetes mellitus and hypertensive cardiovascular disease
were first demonstrated many years after service and have not
been related to the veteran's service.
4. There is no competent medical evidence of record that
demonstrates that a disability for which service connection
was, or could have been, granted caused, hastened, or
materially or substantially contributed to the veteran's
death.
5. The veteran did not die of his service-connected
disability or die while having a disability evaluated as
total and permanent in nature resulting from a service-
connected disability.
6. The rating for the veteran's service-connected
psychiatric disorder was 10 percent from March 1957 to
February 1976, and 30 percent from March 1976 until his
death. There were intermittent periods of hospitalization
during the veteran's lifetime in which a 100 percent rating
was granted on a temporary basis only.
7. The veteran did not have a disability that was
continuously rated totally disabling for a period of ten
years or more immediately preceding death; he was not rated
totally disabled continuously after his discharge from
service in March 1945 and for a period more than 5 years
immediately preceding death; he was not a former prisoner of
war; nor has there been allegation of clear and unmistakable
error.
CONCLUSIONS OF LAW
1. The cause of the veteran's death was not incurred in or
aggravated by active service, nor may it be so presumed. 38
U.S.C.A. §§ 1110, 1112, 1113, 1310, 5103, 5103A, 5107 (West
2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312
(2005).
2. The criteria for entitlement to DIC under the provisions
of 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. §§
1318, 5107 (West 2002); 38 C.F.R. §§ 3.22, 20.1106 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
Referable to the appellant's service connection claim, in
correspondence dated in January 2002 (and prior to the
adjudication of her claim), the agency of original
jurisdiction (AOJ) satisfied its duty to notify under 38
U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b)
(2005). Specifically, the AOJ notified the appellant of
information and evidence necessary to substantiate the claim
for service connection for the veteran's cause of death;
information and evidence that VA would seek to provide; and
information and evidence that the appellant was expected to
provide. In April 2003, she was notified of the information
and evidence necessary to substantiate the claim for benefits
under 38 U.S.C.A. § 1318, as well as the relative burdens of
evidence gathering placed on VA and on her.
In July 2004, she was instructed to submit any evidence in
her possession that pertained to both of her claims.
Although this notice, and the April 2003 notice, were
delivered after the initial denial of the claims, the AOJ
subsequently readjudicated both based on all the evidence in
March 2006, without taint from prior adjudications. Thus,
the appellant was not precluded from participating
effectively in the processing of her claim and the late
notices did not affect the essential fairness of the
decision.
VA has done everything reasonably possible to assist the
appellant with respect to her claim for benefits. The
veteran's service medical records have been associated with
the claims file. All identified and available treatment
records have been secured. While the veteran was receiving
Social Security Administration disability benefits, that
agency reported in December 2004 that those records were
unavailable.
Service connection for Cause of Death
The veteran died in June 1981. His death certificate
indicated "natural causes" as the cause of death. At that
time, service connection had been established for anxiety
neurosis. The appellant argues that "natural causes"
encompasses all of the veteran's pre-existing illnesses, to
include his service-connected psychiatric disease, and
further points out that he was receiving VA treatment for the
same, thereby entitling her to service connection for the
cause of his death.
A claimant of dependency and indemnity compensation (DIC)
benefits under 38 U.S.C.A. § 1310 must establish that a
disability of service origin caused, hastened, or
substantially and materially contributed to death. See 38
U.S.C.A. § 1310(b); 38 C.F.R. § 3.312. The death of a
veteran will be considered to have been due to a service-
connected disability where the evidence establishes that such
disability was either the principal or contributory cause of
death. See 38 C.F.R. § 3.312.
Accordingly, service connection for the cause of a veteran's
death may be demonstrated by showing that the veteran's death
was caused by a disability for which service connection had
been established at the time of death or for which service
connection should have been established. A service-connected
disability is one that was incurred in or aggravated during
active service. See 38 U.S.C.A.
§ 1110; 38 C.F.R. § 3.303(a).
Doctors' statements confirm that the veteran received medical
care for psychoneurosis, diabetes mellitus, hypertensive
cardiovascular disease, suggestive heurodermatitis, tinea
versicolor, periodontitis, and onychauxis. Little other
medical evidence exists in this case, as the appellant has
reported that the veteran's private treating physicians have
all died and with them, their practices. Those records that
are available are from the mid to late 1970s and confirm
treatment for the above mentioned disorders. None draws a
relationship between the veteran's service-connected anxiety
disorder and his ultimate death. Without such a nexus,
service connection for the veteran's cause of death is not
established based on his already service-connected
disability. Recognizing the appellant's argument that his
psychiatric illness may be part of the natural causes listed
on his death certificate, this does not rise to the level of
medical certainty on which VA must rely in granting benefits.
The sole opinion of record referable to the veteran's cause
of death is dated in August 2000. Dr. M. W. reviewed the
above list of diagnoses and singled out diabetes mellitus and
cardiovascular disease, stating that "either of those
diagnoses could be indirect or direct cause of patient's
death." Therefore, the question for the Board is whether
service connection should have been established for either
disorder.
The veteran's service medical records are negative for
treatment of symptoms, or a diagnosis, of either diabetes
mellitus or cardiovascular disease. However, regulations
provide that service connection may be established for either
of these disorders, as they are considered chronic disease
subject to presumptive service connection, if manifested to a
compensable degree within one year of separation from
service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R.
§§ 3.307, 3.309 (2005). In this case, the first documented
indication of either diagnosis is in physician's statements
dated in May 1976, some thirty years after the veteran's
separation from service. Thus, the presumption does not
apply.
In view of the entire record, the preponderance of the
evidence is against the appellant's claim. The benefit of
the doubt provision does not apply. Service connection for
the cause of the veteran's death is not warranted.
DIC Benefits under 38 U.S.C.A. § 1318
In addition to the method above, a surviving spouse also may
establish entitlement to Dependency and Indemnity
Compensation (DIC) in the same manner as if the veteran's
death were service connected where it is shown that the
veteran's death was not the result of willful misconduct, and
at the time of death, the veteran was receiving, or entitled
to receive, compensation for a service-connected disability
and meets the following criteria: that the veteran was
continuously rated totally disabled for the 10 years
immediately preceding death; that the veteran was rated
totally disabled upon separation from service, was
continuously so rated, and died at least five years after
separation from service; or that the veteran was a former
prisoner of war who died after September 30, 1999, and the
disability was continuously rated totally disabling for a
period of not less than one year immediately preceding death.
38 U.S.C.A. § 1318(b) (West 2002); 38 C.F.R. § 3.22 (a)
(2005).
"Entitled to receive" in this context includes the
situation where the veteran had applied for compensation but
had not received total disability compensation due solely to
clear and unmistakable error in a VA decision. 38 C.F.R.
§ 3.22 (b) (2005). In this case, no allegation of clear and
unmistakable error has been made referable to prior rating
decisions concerning the level of the veteran's disability.
Therefore, this provision is inapplicable.
In this case, the veteran's service-connected psychiatric
disorder was evaluated as 10 percent disabling from March
1957 to February 1976, and 30 percent from March 1976 until
his death. While there were intermittent periods of
hospitalization during the veteran's lifetime in which a 100
percent rating was granted, this was done so on a temporary
basis only and does not constitute a "continuous" rating.
The appellant points out that a private physician in May 1976
submitted a statement in conjunction with the veteran's
application for Social Security Administration (SSA)
disability benefits, indicating that the veteran was treated
for anxiety neurosis and diabetes mellitus, and was
considered "totally and permanently disabled." She further
posits that he did not improve and ultimately died. This
evidence, however, does not establish that the veteran's
service-connected psychiatric disability caused the level of
impairment requisite for a formal finding under VA
regulations of total disability.
Of particular note is a concurrent (September 1976) VA rating
decision that dealt specifically with the issue of the
appropriate rating for the veteran's single service-connected
disability. Based on an August 1976 examination, the
disability was found to be less than 100 percent disabling.
In fact, it was judged to be 30 percent disabling. Thus,
while the May 1976 doctor's statement refers to total and
permanent disability, it does not fall within the guidelines
of § 1318.
The veteran did not have a service-connected disability that
was continuously rated by VA to be totally disabling for a
period of ten years or more immediately preceding death. Nor
was his disability rated totally disabled continuously after
his discharge from service in March 1945 and for a period
more than 5 years immediately preceding death. At
separation, the disability was assigned a noncompensable
rating. Finally, the veteran was not a former prisoner of
war. As such, benefits are not warranted under 38 U.S.C.A.
§ 1318.
ORDER
Entitlement to service connection for the cause of the
veteran's death is denied.
Entitlement to Dependency and Indemnity Compensation (DIC)
under 38 U.S.C.A. § 1318 is denied.
____________________________________________
J. E. Day
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs